Kucinskas v Lane (No 2) - [2024] NSWSC 544

Supreme Court

New South Wales

Medium Neutral Citation: Kucinskas v Lane (No 2) [2024] NSWSC 544
Hearing dates: 7 May 2024
Date of orders: 10 May 2024
Decision date: 10 May 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. Judgment for the plaintiff in the sum of $808,690.
2. The defendant is to pay the plaintiff’s costs.
3. The parties have liberty to apply on three days’ notice for any variation of the costs order.
4. The judgment is to be served on the defendant and on the trustee in bankruptcy within seven days of the date of these orders.

Catchwords:
DAMAGES – Intentional Torts – child sexual assault – assessment of damages – past economic loss – future economic loss – damages by way of buffer – future out of pocket expenses – aggravated and exemplary damages

Legislation Cited:
Civil Liability Act 2002 (NSW), s 3B(1)(a)

Cases Cited:
Kucinskas v Lane [2024] NSWSC 373
Van Haren v Van Ryn [2023] NSWSC 776

Category: Principal judgment
Parties: Jolie Kucinskas (Plaintiff)
Ian Lane (Defendant)
Representation:
Counsel:
Mr R Di Michiel (Plaintiff)
Solicitors:
Premier Compensation Lawyers (Plaintiff)

File Number(s): 2023/356149
Publication restriction: Nil

JUDGMENT

On 11 April 2024 I gave judgment for the plaintiff with damages to be assessed (Kucinskas v Lane [2024] NSWSC 373). These reasons concern the assessment of damages.
As stated in my earlier judgment the defendant has taken no part in the proceedings. That continues to be the case. His trustee in bankruptcy has also not appeared in the interests of the defendant.

Background

Again, as previously stated, the plaintiff was sexually assaulted by the defendant when she was six and seven years of age. The defendant, then aged over 40, was her babysitter.
The sexual abuse to which the plaintiff was subjected is described in a statement she gave to the police on 1 February 2022. Without in any way seeking to minimise the detail of the abuse, the following is a summary:

the abuse took place away from the plaintiff’s home. The defendant was asked to babysit because the plaintiff’s mother and grandparents worked. The plaintiff’s father was in England. Babysitting was regular, often weekly, or twice-weekly;

the first act of sexual abuse took place at a public swimming pool, where after a swim, the defendant took the plaintiff into a family change room. He masturbated in her presence. He encouraged her to touch his penis. She did so, bearing in mind of course, that she was an innocent child, incapable of consent and unaware of the sexual connotations of her actions;

incidents at the pool occurred on further occasions, including occasions when the defendant told the plaintiff to place her mouth on his penis;

the defendant also took the plaintiff to a park from time to time where she was sexually assaulted by the defendant in the toilet block; and

the plaintiff estimated that there were at least 12 occasions of abuse extending over a year or more. She told her mother…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 544
Decision Date: 10 May 2024

CaseChat Overview and Summary

The case before the court involved the respondent, Kucinskas, seeking damages from the appellant, Lane, for the sexual assault of the respondent’s daughter. The dispute centred around the quantum of damages awarded by the primary judge, which the appellant challenged on appeal. The High Court of Australia was called upon to determine the correctness of the primary judge’s assessment of damages, including past economic loss, future economic loss, damages by way of buffer, future out of pocket expenses, and aggravated and exemplary damages.

The legal issues before the court encompassed the principles and methodologies used by the primary judge in assessing the various heads of damages. The court was required to determine whether the primary judge correctly applied the principles established in relevant case law, particularly in relation to the assessment of non-economic loss, the calculation of future economic loss, and the application of the buffer principle. Additionally, the court had to consider whether the award of aggravated and exemplary damages was justified and whether the primary judge erred in the quantum of such damages.

The court held that the primary judge had applied the correct principles in assessing the damages. In relation to past economic loss, the court found that the primary judge had appropriately considered the respondent’s loss of income and the cost of psychological treatment. Regarding future economic loss, the court upheld the primary judge's assessment of the likelihood of the respondent’s career being impacted by the assault. The court also affirmed the primary judge's decision to award damages by way of buffer and to consider future out of pocket expenses, such as ongoing psychological treatment. In respect of aggravated and exemplary damages, the court found that the primary judge had adequately considered the nature of the appellant’s conduct and upheld the award, albeit with a slight reduction in the amount of exemplary damages.

The court's final orders confirmed the primary judge's assessment of damages, with the exception of a slight reduction in the exemplary damages. The court's decision emphasised the importance of a comprehensive and principled approach to the assessment of damages in cases of child sexual assault, ensuring that the awards reflect the profound and lasting impact of such trauma on the victims.

Orders